Anthony Craig Walker v. Novo Nordisk Pharmaceutical Industries, Inc. 99-2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________________________ No. 99-2015 _________________________________________ ANTHONY CRAIG WALKER Plaintiff-Appellant, v. NOVO NORDISK PHARMACEUTICAL INDUSTRIES, INC., Defendant-Appellee. ______________________________________________ On Appeal from the United States District Court for the Eastern District of North Carolina ______________________________________________ Brief of the Equal Employment Opportunity Commission as Amicus Curiae ______________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Assistant General Counsel Office of General Counsel 1801 L Street, N.W. JENNIFER S. GOLDSTEIN Washington, DC 20507 Attorney (202) 663-4733 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................... ......ii STATEMENT OF INTEREST ............................................................................... ...1 STATEMENT OF THE ISSUE ............................................................................... .2 STATEMENT OF FACTS ............................................................................... ........2 1. Walker's Claim ................................................................. 2 2. The Memorandum of Understanding.............................................. 5 ARGUMENT....................................................................... 11 WALKER'S OFCCP COMPLAINT SHOULD BE TREATED AS A SIMULTANEOUSLY-FILED EEOC CHARGE, AS CONTEMPLATED BY THE MEMORANDUM OF UNDERSTANDING BETWEEN THE OFCCP AND EEOC, NOTWITHSTANDING THE APPARENT FAILURE OF THE EEOC AND OFCCP TO TREAT IT AS SUCH...................... 11 A. The EEOC and OFCCP Intended in 1981 that All OFCCP Complaints Alleging Title VII Violations Would Be Deemed EEOC Charges, Regardless of Whether OFCCP Chose to Investigate the Complaint or to Refer It to the EEOC for Investigation ........................ 12 B. Equitable Tolling Should Apply Where the Two Federal Agencies Failed to Take the Requisite Steps To Ensure That, In Cooperating With Each Other, They Did Not Preclude An Individual From Asserting His Rights to Pursue a Title VII Action ....................... 22 CONCLUSION..........................................................26 ADDENDUM CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________________________ No. 99-2015 _________________________________________ ANTHONY CRAIG WALKER Plaintiff-Appellant, v. NOVO NORDISK PHARMACEUTICAL INDUSTRIES, INC., Defendant-Appellee. ______________________________________________ On Appeal from the United States District Court for the Eastern District of North Carolina ______________________________________________ Brief of the Equal Employment Opportunity Commission as Amicus Curiae ______________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC" or "Commission") is the federal agency charged by Congress with the interpretation, enforcement, and administration of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court in this case held that the plaintiff had not filed a timely discrimination charge with the Commission, even though he had filed a timely discrimination complaint with the Office of Federal Contract Compliance Programs ("OFCCP"), another federal agency charged with eliminating discrimination in the workplace. In so holding, the district court did not address the significance of an agreement - known as a Memorandum of Understanding ("MOU") - between the EEOC and OFCCP designed to coordinate the agencies' charge/complaint receipt process. The Commission believes that the MOU, and the agencies' intent in adopting the MOU, are critical factors in the timeliness determination, and that the district court therefore erred in failing to address the MOU. After briefing by the parties, this Court issued an order requesting that the Commission file an amicus brief addressing the timeliness issue. Because of this Court's request, and because we believe the district court's analysis of the timeliness issue was incomplete and hence incorrect, we offer our views to the Court. STATEMENT OF THE ISSUE<1> Whether Walker's OFCCP complaint should be considered a timely, simultaneously-filed EEOC charge -- as contemplated by the Memorandum of Understanding between the agencies. STATEMENT OF FACTS 1. Walker's Claim Plaintiff Anthony Walker filed a complaint with OFCCP on April 15, 1997. Walker alleged that his employer, Novo Nordisk Pharmaceutical, failed to accommodate his religious beliefs when it required him to work on Sundays and discriminated on the basis of race and religion when it fired him on April 11, 1997. Walker had to work three Sundays during his tenure with Novo: November 24, 1996, February 23, 1997, and March 9, 1997. All of the challenged events occurred within 180 days of the OFCCP complaint.<2> In a letter OFCCP sent to Novo on April 22, 1997, OFCCP indicated that Walker had "join[ed]" with a complaint filed earlier by other Novo employees, and that OFCCP was treating Walker's complaint as a "Class Complaint." Joint Appendix ("JA") 20. OFCCP investigated the complaints (five in all) and issued the results of its investigation on August 20, 1997. With respect to Walker's discharge, OFCCP concluded that Novo did not discriminate in its decision to terminate him. With regard to the accommodation claims made by Walker and other complainants, OFCCP found that Novo violated its obligations under Federal contracts by failing to provide an accommodation policy. JA 27. Novo subsequently issued a Religious Observance Policy. JA 33. Walker filed a race and religion charge with the EEOC on September 25, 1997 (perfected on October 1, 1997), alleging discrimination based on the failure to provide an accommodation and on his discharge. See Addendum ("Add.") A2. The date of the EEOC charge was some 200 days after the last Sunday Walker was required to work, and 167 days after his discharge. The EEOC Investigator assigned to Walker's case issued a recommendation for immediate closure of the charge and issuance of a right-to-sue notice. Id. The EEOC Investigator's recommendation, approved on November 6, 1997, noted that OFCCP already investigated the matter and that the lead charging party in the OFCCP complaint was directed by the EEOC's Charlotte District Office to file a charge and request a right to sue notice, "since OFCCP does not issue [right-to-sues] on individual charges." Id. A memorandum from the EEOC Enforcement Supervisor also noted that OFCCP does not issue right-to-sue notices for individuals, and that Walker had filed the charge in order to obtain the notice. Add. A3. Nothing in the charge file indicated whether or not OFCCP ever notified the Commission of Walker's complaint. The Commission issued a Notice of Right to Sue on January 13, 1998. Walker filed a complaint in federal district court on April 13, 1998, alleging religious discrimination in the failure to accommodate and the discharge. Novo filed a motion for summary judgment, which the district court granted on June 16, 1999. The court emphasized that Walker did not file an EEOC charge within 180 days of any Sunday on which Walker was required to work. JA 99-100. The court held that Walker's "filing of an administrative complaint with OFCCP does not change this result." JA 100 (citing NAACP Labor Comm. of Front Royal, Va. v. Laborer's Int'l Union of N. Am., 902 F. Supp. 688 (W.D. Va. 1993)). According to the court, "the filing of a formal Title VII charge does not occur until the EEOC actually receives the charge," whether by referral or by the charging party. JA 100. The court further held that no grounds existed for equitable tolling. JA 99 n.3. Finally, the court granted summary judgment on Walker's discharge claim. JA 100-02. Walker appealed. 2. The Memorandum of Understanding The Commission and the OFCCP have entered into four different Memoranda of Understanding ("MOU"), the first in 1970 and the latest in 1999. The 1970 MOU stated, in relevant part, that "OFCC shall promptly transmit complaints filed with it under Executive Order 11246 . . . to EEOC, which shall treat such complaints as charges filed under Title VII of the Civil Rights Act of 1964. EEOC will investigate such complaints." 35 Fed. Reg. 8461 at Part II(a) (1970). The Commission has argued in briefs that, under the 1970 MOU, the OFCCP (then "OFCC") was acting as the Commission's agent for purposes of receiving charges. Hence the date the OFCCP received a complaint was the date the Commission deemed the charge to have been filed with the EEOC. See Brief of EEOC, Egelston v. State Univ. College at Genesco, No. 76-7047 (2d Cir.) at 5-7 (Add. A9-A11); see also Brief of EEOC at 9, EEOC v. Collator Corp., No. 73-2181 (9th Cir.) at 9 (Add. A14) ("A single charge, timely filed with either agency, is sufficient to invoke the jurisdiction of both.") (citing 1971 EEOC Decision and arguing that OFCCP filing constituted simultaneous EEOC charge). That the Commission made this argument in Egelston is notable because the OFCCP never actually transmitted the complaint to the Commission. See Add. A7. The Second Circuit agreed with the Commission's position and held the charge filed as of the date of the OFCCP complaint filing. Egelston v. State Univ. College at Genesco, 535 F.2d 752, 755 n.4 (2d Cir. 1976). See also EEOC v. Collator Corp., 7 Fair Empl. Prac. Cases (BNA) 1258 (9th Cir. 1974) (reversing, without opinion, district court holding that filing with OFCCP could not be deemed filing with EEOC). The MOU was revised in 1974. The new document read: "Complaints filed with OFCC shall be deemed charges filed with EEOC and OFCC shall promptly transmit such charges to the appropriate EEOC District Office." 39 Fed. Reg. 35,855, 35,856 at ¶ 10 (1974). Thus the 1974 document appeared to clarify that all OFCCP complaints were deemed charges, regardless of whether they were physically transmitted to the Commission or not. The Commission argued that the 1974 MOU, including paragraph 10, was valid in its brief in Reynolds Metals Co. v. Rumsfeld, Nos. 76-2124 to 76-2126 (4th Cir.) (Add. A17). The Commission explained that Paragraph 10 made OFCCP the Commission's agent for receipt of charges falling within the Commission's jurisdiction. Add. A19. The Commission argued that the purpose of the paragraph "is to make certain that persons aggrieved by an unlawful practice, who are often untutored laymen, do not lose their rights to have their claims of employment discrimination considered because they are confused about the proper agency with which to file their complaints." Id. (noting in addition that OFCCP generally focuses on claims of systemic discrimination, not on individual claims of discrimination). The Fourth Circuit upheld the validity of the MOU as a whole. Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663 (4th Cir. 1977). While the issue of charge timeliness was not at issue in Rumsfeld, the court noted with favor the Second Circuit's holding that a filing with OFCCP constitutes a filing with the EEOC. Id. at 669-70 & n.12 (citing Egelston). The Fourth Circuit observed that "paragraph 10 avoids technical bars to the administration of Title VII." Id. at 670. The Commission and OFCCP began drafting a new MOU in the late 1970's. In 1979, a draft MOU stated: "Complaints filed with OFCCP within the jurisdiction of EEOC shall be deemed charges filed jointly with EEOC and OFCCP shall promptly transmit all such charges to the appropriate EEOC Field Office. For the purposes of determining the timeliness of the charge under the statutes administered by EEOC the date the matter was received by OFCCP shall be deemed the date it was received by EEOC." "Coordination of Federal Equal Employment Opportunity Programs: The First Year 1978-1979," at L-19 ¶ 7 (Add. A43). The Proposed Memorandum submitted the following year contained identical language except that it read: "Complaints filed with OFCCP within the jurisdiction of EEOC which OFCCP refers to EEOC shall be deemed charges filed jointly with EEOC. OFCCP shall promptly transmit all such charges to the appropriate EEOC Field Office. For the purposes of determining the timeliness of the charge under the statutes administered by EEOC the date the matter was received by OFCCP shall be deemed the date it was received by EEOC." 45 Fed. Reg. 27,071, 27,074 ¶ 7 (1980) (emphasis added). The final MOU was issued January 23, 1981, at 46 Fed. Reg. 7435 (1981). Paragraph 7 remained the same, except that language was added indicating that "OFCCP shall normally retain, investigate and resolve all complaints of a systemic or class nature which it receives...." 46 Fed. Reg. at 7438 ¶ 7. This 1981 MOU was the one in effect at the time Walker filed his complaint and charge. The purpose of the revisions to the 1974 MOU was explained in the Supplementary Information section of both the proposed and final notices. In the Information section accompanying the final MOU, the agencies emphasized that one of the primary purposes of the new MOU was to minimize "the possibility that both agencies would investigate the same employer based on two different charges" and "to minimize duplication where the agencies are able to do so." 46 Fed. Reg. at 7436. The agencies also explained that the language regarding investigation of systemic complaints by OFCCP reflected the traditional practice of the agencies and "does not represent a change in policy." Id. Included with the proposed MOU was the statement that "[t]o protect the rights of charging parties, the Memorandum provides that complaints filed with OFCCP which are also within the jurisdiction of and referred to EEOC will be deemed filed with EEOC as of the date received by OFCCP. This will ensure full protection of rights during that period when complaints are forwarded from one agency to the other." 45 Fed. Reg. at 27,072 ¶ 3 (emphasis added). The section added that "[w]hen OFCCP plans to investigate a complaint, OFCCP will notify EEOC of its receipt of the complaint by transmitting a copy to EEOC. EEOC will not open a charge file nor investigate such a complaint." Id. (emphasis added). Nowhere in the information accompanying either the proposed or final MOU, nor in any other EEOC document discussing the MOU, is there any indication that the agencies intended to depart from the decade-long practice of treating OFCCP as the Commission's agent for purposes of receiving charges, and deeming the date of the OFCCP complaint to be the date of the EEOC charge, regardless of when (or if) the complaint was transmitted to the EEOC. The 1981 MOU remained in effect for almost 20 years. On December 14, 1998, a Notice of Proposed Changes to the MOU was published at 63 Fed. Reg. 68,764 (1998), and the Final Notice was published on April 12, 1999, at 64 Fed. Reg. 17,664 (1999). The 1999 MOU contained a number of revisions to paragraph 7. The MOU now states that complaints filed with OFCCP "will be considered charges simultaneously filed under Title VII whenever the complaints also fall within the jurisdiction of Title VII. For purposes of determining the timeliness of such a charge . . . , the date the matter was received by OFCCP shall be deemed to be the date it was received by EEOC." 64 Fed. Reg. at 17,666 ¶ 7(a). Paragraph 7 also states that "OFCCP will act as EEOC's agent for the purposes of receiving, investigating, and processing the Title VII component of complaints/charges that it retains under this paragraph." Id. at ¶ 7(d). EEOC delegated to OFCCP the authority to investigate the Title VII component of a complaint/charge, to issue cause findings under Title VII, to issue right-to-sue notices under Title VII, and to conciliate to obtain relief in a manner consistent with the EEOC's standards for remedies. Id. at ¶ 7(d)(3)-(5). See also Supplementary Information, 63 Fed. Reg. at 68,765 (revised paragraph 7 "would authorize OFCCP to act as EEOC's agent in processing and resolving the Title VII component of complaints retained by OFCCP that are dual filed under Title VII and Executive Order 11246"). Accordingly, Walker's complaint plainly would be deemed a timely EEOC charge if it had been filed after the adoption of the 1999 MOU. ARGUMENT WALKER'S OFCCP COMPLAINT SHOULD BE TREATED AS A SIMULTANEOUSLY-FILED EEOC CHARGE, AS CONTEMPLATED BY THE MEMORANDUM OF UNDERSTANDING BETWEEN THE OFCCP AND EEOC, NOTWITHSTANDING THE APPARENT FAILURE OF THE EEOC AND OFCCP TO TREAT IT AS SUCH. It is the Commission's view that the 1981 MOU was intended to designate the OFCCP as the EEOC's agent for purposes of receiving charges whenever an OFCCP-filed complaint alleged facts comprising a Title VII violation. Such designation would render all such complaints timely as of the date filed with OFCCP, irrespective of when or whether the EEOC physically received the complaint. Notwithstanding this intention, the agencies apparently did not act in accordance with the MOU in the course of handling Walker's OFCCP complaint. It is unclear whether OFCCP ever transmitted a copy of Walker's complaint to the EEOC, as anticipated by the MOU. Additionally, the Commission itself did not treat the OFCCP complaint as an EEOC charge, as evidenced by the fact that the Commission had Walker fill out a new charge form and did not date the charge as filed the date of the OFCCP complaint. Given these circumstances, it is the Commission's view that Walker, who did all that should reasonably be expected, should not be penalized for the error of the administrative agencies. Rather, his charge should be deemed timely under clearly-applicable principles of equitable tolling. A. The EEOC and OFCCP Intended in 1981 that All OFCCP Complaints Alleging Title VII Violations Would Be Deemed EEOC Charges, Regardless of Whether OFCCP Chose to Investigate the Complaint or to Refer It to the EEOC for Investigation. The agencies' intent in entering into the 1981 MOU was that an individual who filed an OFCCP complaint alleging facts constituting a Title VII violation should be deemed to have filed an EEOC charge as of the date of the OFCCP complaint, regardless of whether the OFCCP chose to retain the complaint or refer it to the Commission for investigation. Under the 1981 MOU, therefore, OFCCP's decision to investigate Walker's complaint should not have restricted his rights to bring a Title VII action based on the complaint. In its brief on appeal, defendant Novo urges a narrower reading of the MOU. Specifically, defendant argues that, under the 1981 MOU, only if OFCCP actually refers a complaint to EEOC for processing are the individual's Title VII rights preserved. Defendant highlights the phrase added to the MOU in the 1980 draft - i.e. "which OFCCP refers to EEOC" - to argue that only complaints referred to EEOC for investigation are to be considered EEOC charges. We agree that at first blush defendant's proffered reading of the MOU, with which the district court seemed to concur, appears to be a plausible one. However, defendant's reading overlooks the context in which the MOU was drafted and the purposes of the MOU as a whole, and ultimately is not an accurate characterization of the agencies' intent in drafting the MOU. From the very first MOU in 1970 and continuing through the 1999 MOU, the Commission has always sought to make OFCCP its agent for purposes of receiving charges alleging discrimination unlawful under Title VII, and to consider the charges filed as of the date of the OFCCP complaint filing. See Discussion of MOU's and EEOC Briefs infra at 5-11. The 1981 MOU, as originally drafted in 1979, plainly would have rendered Walker's OFCCP complaint a timely EEOC charge. The critical question in this case, then, is whether or not the phrase added in 1980 (and highlighted by defendant) was intended by the Commission and OFCCP to require individuals whose complaints OFCCP decided to investigate to file a second, identical charge with the EEOC immediately, or else lose the ability to file a Title VII action.<3> The answer to this question is "no," for imposing an additional hurdle in this class of cases simply was not what was intended in the 1981 MOU. The phrase added in 1980 was not intended to operate as a limitation on the later sentence in Paragraph 7, which states that for timeliness purposes, the date a matter was received by OFCCP shall be deemed the date it was received by EEOC. 46 Fed. Reg. at 7438 ¶ 7. The phrase in question instead was added to address the clause requiring OFCCP to transmit charges to the EEOC for processing. As originally drafted in 1979, it appeared that OFCCP was agreeing to transmit to the EEOC all charges within the EEOC's jurisdiction, both systemic and individual. Transmitting all complaints was neither the OFCCP's practice nor its aim. The added phrase - "which OFCCP refers to EEOC" - serves to clarify OFCCP's intention that it need only transmit certain charges to EEOC for EEOC processing, and that it could retain others for OFCCP investigation. This understanding of the phrase is consistent with the expressed purpose of the MOU as a whole. As the Supplementary Information section explained, the revised MOU was designed to clarify the respective roles of the two agencies and "to minimize duplication" by the agencies. See also Exec. Order No. 12,067, 43 Fed. Reg. 28,967 (1978) at ¶ 1-201 (EEOC shall "strive to . . . eliminate duplication . . . among the operations . . . of the Federal . . . agencies having responsibility for enforcing [equal employment opportunity] statutes [and] Executive orders").<4> The Information section attached to the MOU pointed out that in delegating to different federal agencies the responsibility to implement related federal policies, "artificial barriers may result." 45 Fed. Reg. at 27,072. The MOU was meant "to eliminate or reduce such barriers to the extent possible and . . . to have the Federal Government function . . . as an efficient and coordinated entity." Id. See also Exec. Order No. 12,067 at ¶ 1-301(i) (directing EEOC to develop memoranda of understanding "designed to improve the coordination of equal employment opportunity enforcement"). Reading the MOU as defendant does to require a simultaneous, duplicate filing with EEOC in cases where OFCCP investigates the complaint is contrary to the stated purpose of the document to minimize such duplication. See EEOC v. Techalloy Md., Inc., 894 F.2d 676, 679 (4th Cir. 1990) (worksharing agreement must be interpreted in light of "the very purposes of the agreement - to minimize red tape and to expeditiously process discrimination charges"). Duplicate filing not only creates a barrier for an individual seeking to assert Title VII rights but also subjects employers to possible investigations by two different federal agencies of the same claim at the same time. This latter possibility was an oft-repeated concern that the MOU was meant to address.<5> See, e.g., Exec. Order No. 12,067 at ¶ 1-301(c) (directing EEOC to "develop . . . memoranda of understanding . . . to minimize duplicative investigations . . . of particular employers . . . covered by Federal statutes"). Of course, the agencies were also concerned about "protect[ing] the rights of charging parties." 45 Fed. Reg. at 27,072 ¶ 3. Reading the phrase to limit the OFCCP's role as agent to those complaints it actually refers to the Commission would, to a large extent, leave an individual able or unable to pursue a Title VII claim, depending on how the OFCCP chose to treat the individual's complaint. Such a reading would mark a dramatic departure from the prior MOU, which deemed all OFCCP complaints to be charges filed with EEOC. There is no clear statement in the MOU or contemporaneous documents indicating that the agencies intended to impose such an haphazard filing requirement on lay persons seeking to preserve their Title VII rights. There also is no statement in the MOU or other documents providing that OFCCP should alert an individual whose complaint it was investigating that the individual would have to file a simultaneous EEOC charge or risk losing Title VII rights.<6> This silence by the agencies at the time the 1981 MOU was drafted is telling evidence that no such result was ever intended. Cf. Techalloy, 894 F.2d at 679 (EEOC's interpretation of worksharing agreement is accorded deference and should be upheld as long as it is reasonable); compare Petrelle v. Weirton Steel Corp., 953 F.2d 148, 152-53 (4th Cir.1991) (no deference due where state agency did not interpret worksharing agreement to authorize initiation of state proceedings through EEOC filing).<7> There can be little question that the Commission has the authority under Title VII to designate OFCCP as its agent in cases where an OFCCP complaint alleges facts which, if true, would constitute a Title VII violation. Title VII explicitly anticipates that the EEOC and other federal agencies with overlapping responsibilities for enforcing anti-discrimination laws will enter into agreements designed to promote efficiency and prevent overlapping actions. See 42 U.S.C. § 2000e-14 (EEOC "shall have the responsibility for developing and implementing agreements, policies and practices designed to maximize effort, promote efficiency, and eliminate conflict, competition, duplication and inconsistency among the operations, functions and jurisdictions of the various departments, agencies and branches of the Federal Government responsible for the implementation and enforcement of equal employment opportunity legislation, orders, and policies"). Executive Order No. 12,067 (1978) at ¶ 1-301(c), (i) also explicitly directs the Commission to develop memoranda of understanding to improve coordination between agencies and minimize duplicative investigations. The Commission's development of such memoranda thus not only is permissible under federal law, but is also required. Such coordination and elimination of duplicative efforts among federal agencies will necessarily include agreements regarding the receipt of complaints.<8> For this reason, the courts have long recognized that agreements between governmental agencies may operate to designate one as the agent for the other for charge receipt purposes, such that receipt by the former may be construed as the initiation of proceedings with the latter. The propriety of such agreements has been recognized specifically in the context of Memoranda of Understanding between EEOC and OFCCP. See Egelston, 535 F.2d at 755 n.4 (holding EEOC charge filed as of date of OFCCP complaint filing even though OFCCP never referred complaint to EEOC); see also Reynolds Metals, 564 F.2d at 669-70 & n.12 (citing Egelston with approval and advocating a "common sense interpretation of technical filing requirements," but not deciding limitations issues); Collator Corp.,7 Fair Empl. Prac. Cases 1258 (9th Cir. 1974) (reversing, without opinion, district court holding that filing with OFCCP could not be deemed filing with EEOC); compare Preston v. Commonwealth of Virginia, No. 91-2020, 1991 WL 156224 (4th Cir. 1991) (unpublished) (complaint filed with, and investigated by, Department of Education's Office for Civil Rights may be deemed to be charge received by EEOC).<9> One district court opinion, invoked by defendant (Def. Br. at 22), concluded that filing with OFCCP may not constitute filing with EEOC. See NAACP Labor Comm. of Front Royal, Va. v. Laborers' Int'l Union of N. Am., 902 F. Supp. 688, 702 (W.D. Va. 1993), aff'd without discussion, 67 F.3d 293 (4th Cir. 1995) (unpublished). Specifically, the court in NAACP Labor cited to 42 U.S.C. § 2000e-5 and suggested that filing with OFCCP may never satisfy the requirement that a charge be filed with the EEOC, regardless of the language of any memorandum of understanding. 902 F. Supp. at 702. The NAACP Labor court's understanding of Title VII's procedural requirements is fundamentally flawed. Nothing in Title VII prohibits agreements in which the EEOC designates another governmental agency to be its agent for purposes of receiving charges. To the contrary, Title VII demands that the EEOC develop agreements with federal agencies to coordinate its functions and promote efficiency. 42 U.S.C. § 2000e-14; see also Exec. Order No. 12,067, 43 Fed. Reg. 28,967 (1978). The district court never referenced this provision. The NAACP Labor court's opinion also deemed it significant that a complaint filed with OFCCP and alleging a Title VII violation is, according to the court, a "misdirected Title VII complaint[]." 902 F. Supp. at 701. Defendant relies on this characterization of OFCCP as merely a "'conduit to receive misdirected Title VII complaints'" to suggest - incorrectly - that it was improper for Walker to file a complaint with OFCCP, rather than with EEOC. Def. Br. at 22. In fact, the 1981 MOU clearly indicates that filing with OFCCP in the first instance is wholly appropriate because OFCCP has the authority to "investigate and resolve" complaints. 46 Fed. Reg. at 7438 ¶ 7. The 1974 MOU at issue in NAACP Labor contained no such delineation of OFCCP's authority to investigate complaints alleging employment discrimination. Indeed, any assertion that Walker's OFCCP complaint was misfiled is belied by the fact that OFCCP actually did investigate his complaint. It is therefore inaccurate for defendant to invoke NAACP Labor in this case. Where the Federal Government has established agencies with overlapping responsibilities for administering and enforcing anti-discrimination laws, it is consistent with the goal of agency coordination to permit agreements under which a complaint filed with one agency is deemed a charge filed with the EEOC. As the Preston court emphasized: "To permit the agency to retain certain claims of employment discrimination for investigation, but then bar later suits when the agency does so, would be an anomalous result - especially considering that the purpose of the regulation is to coordinate the processing of claims." Preston, 1991 WL 156224, **2. A rigid reading of Title VII's charge-filing requirements is also inconsistent with the notion that the administrative prerequisites should be applied flexibly. See EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 124 (1988) (Title VII "is a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process"); Morgan v. Washington Mfg. Co., 660 F.2d 710, 712 (6th Cir. 1981) ("statutes of repose should not be turned into stone walls that defeat the reasonable efforts of the lay plaintiff to enter"). As the Supreme Court observed in Love v. Pullman Co., 404 U.S. 522, 526 (1972): "To require a second 'filing' by the aggrieved party . . . would serve no purpose other than the creation of an additional procedural technicality. Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." Finally, this Court has held that deference must be given to the EEOC's "reasonable interpretation of when state proceedings are commenced . . . under [Title VII]." Techalloy, 894 F.2d at 678-89 (emphasis added) (citing Commercial Office Prods., 486 U.S. at 115); Petrelle, 953 F.2d at 152-53 (deference may be due EEOC's interpretation that ADEA allows agency relationship to cause filings with EEOC to commence state proceedings). Certainly no less deference should be accorded the Commission's interpretation of when its own proceedings are commenced. B. Equitable Tolling Should Apply Where the Two Federal Agencies Failed to Take the Requisite Steps To Ensure That, In Cooperating With Each Other, They Did Not Preclude An Individual From Asserting His Rights to Pursue a Title VII Action. Notwithstanding the EEOC's view that the MOU effectively renders any OFCCP complaint alleging a Title VII violation a simultaneously-filed EEOC charge, in this case the Commission, for reasons we have been unable to ascertain, did not treat the OFCCP complaint as an EEOC charge and directed Walker to make a second filing. The fact that Walker's OFCCP complaint was not treated as a timely EEOC charge was an error on the part of the agency, and such error should not serve to penalize the plaintiff. See Techalloy, 894 F.2d at 679 (to make timeliness of plaintiff's charge dependent on "the agencies' strict compliance with the referral provisions of the worksharing agreement [] would be to exalt form over substance and preclude relief to a potentially meritorious claim simply because it was the victim of a bureaucratic mix-up"); Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 312 (2d Cir. 1996) ("the timeliness of a claimant's filing . . . should not be made to depend on whether one or the other agency follows through on its undertakings under a Worksharing Agreement"). It is clear that the period for filing an EEOC charge is subject to equitable tolling. See Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982) (timely charge "is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling")<10>; Morgan, 660 F.2d at 712 (applying equitable tolling to complaint misfiled with Department of Labor's Wage and Hour Division). Equitable tolling is appropriate where the Commission is in some way responsible for a delayed filing. See Jackson v. Richards Med. Co., 961 F.2d 575, 587 n.11 (6th Cir. 1992) (where Commission supplied erroneous information, "courts have consistently applied principles of equitable tolling to prevent the party from being penalized for the Commission's mistakes"); White v. Dallas Indep. Sch. Dist., 581 F.2d 556, 562 (5th Cir. 1978) (en banc) ("EEOC's failure to follow its own regulations . . . should not redound to [the claimant's] detriment"); see also Citicorp Person-to Person Fin. Corp. v. Brazell, 658 F.2d 232, 234 (4th Cir. 1981) (noting that EEOC failure to follow regulations might warrant tolling, but holding that plaintiff herself was at fault in present case). Equitable tolling is appropriate here because the plaintiff timely filed a complaint with a federal agency responsible for enforcing federal anti-discrimination requirements. That agency did not transmit a copy of the complaint to the Commission, and, when the Commission did learn of the complaint, the Commission failed to treat the complaint as an EEOC charge. Walker should not be penalized for the agencies' actions. See Brown v. Crowe, 963 F.2d 895, 900 (6th Cir. 1992) (applying tolling because the "errors of the administrative agencies should not be visited upon the plaintiff"). Walker also should not have to establish he knew of the MOU and relied on it to his detriment, as defendant argues. The administrative prerequisites of Title VII are meant to be initiated by lay persons, not experts familiar with the details of MOU's. To our knowledge, Walker had no reason to doubt that his timely filing with a federal agency charged with enforcing federal anti-discrimination mandates preserved his Title VII rights. Moreover, reasons weighing against application of equitable tolling are not present in this case. Contrary to defendant's claim that "remedial mechanisms" were not triggered by the OFCCP complaint, Def. Br. at 23, the purposes of an EEOC charge - notifying the employer of the allegations against it and instigating the investigative process - were effectuated by Walker's timely OFCCP complaint filing. As for the conciliation prong, defendant Novo put into place a Religious Observance Policy as a result of the OFCCP investigation and findings. Litigation did not ensue directly from the OFCCP complaint only because, at that time, OFCCP lacked the authority to issue right-to-sue notices. Indeed, Walker's EEOC charge file indicates that he filed the second charge with EEOC only because he sought to vindicate his Title VII rights in court and OFCCP could not issue a right-to-sue notice.<11> There is no indication that Walker filed the EEOC charge in a belated effort to instigate an EEOC investigation. Defendant Novo has pointed to no prejudice it suffered, nor to any bad faith or lack of due diligence on the part of the plaintiff, except for the fact that Walker did not file a simultaneous charge with the Commission raising the exact same allegations as the OFCCP complaint. The only fault in this case rests with the federal agencies, which did not take the steps necessary to ensure that, in cooperating with each other, they did not preclude an individual from subsequently asserting his right to pursue a Title VII action. Equitable tolling therefore is appropriate. CONCLUSION For the foregoing reasons, this Court should reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIFICATE OF SERVICE I hereby certify that two copies of this brief were mailed, first class, postage prepaid, on this 14th day of March, to the following: William C. Livingston Christopher L. Ekman Kennedy Covington Lobdell & Hickman 100 North Tryon Street Suite 4200 Charlotte, NC 28202-4006 Craig James Law Offices of Craig James P.O. Box 104 Smithfield, NC 27577 ____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 March 14, 2000CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume limitation of Rule 32(a)(7)(B). This brief contains 6082 words. ___________________________ Jennifer S. Goldstein 1 The Commission takes no position on any other issue raised in this appeal. 2 Walker was employed in North Carolina, and was subject to a 180-day limitations period for filing a Title VII charge. 3 Prior to the 1999 MOU, OFCCP had no authority to issue right-to-sue notices to individuals who wished to pursue a Title VII claim. Only EEOC possessed such authority. 4 The 1978 Executive Order was the impetus for the revisions to the 1974 MOU. 5 A contemporaneous survey of employers revealed that 57 percent of employers were investigated by two or more Federal agencies and 20 percent reported more than one investigation of the same complaint. 6 It is not clear when an individual filing with the OFCCP would learn that his or her complaint was being investigated by OFCCP, rather than being transferred to the Commission for processing. Making an individual's rights dependent upon such happenstance is not consistent with a document designed to promote efficiency and coordination. The MOU thus should not be read to require a second filing simply because the OFCCP chooses to investigate a complaint. 7 Unlike the factual setting of Petrelle, where the state agency believed the agreement required physical receipt of a charge to commence proceedings, here the relevant agency (the EEOC) believed the agreement did not require physical receipt of the agreement to commence proceedings. 8 If agreements did not cover receipt of complaints, individuals would have to file with more than one agency to protect their rights. One complaint thus could be transformed into two, or more, with a comparable number of agency investigations. 9 The propriety of such agreements between government agencies has also been recognized in the context of worksharing agreements between the EEOC and state and local agencies. See Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th Cir.1994) (under terms of worksharing agreement between EEOC and Texas Commission on Human Rights ("TCHR"), EEOC's acceptance of charge as TCHR's agent instituted state proceedings under Title VII); Hong v. Children's Mem'l Hosp., 936 F.2d 967, 970-71 (7th Cir.1991) ("workshare agreement can alone effect both initiation and termination of state proceedings and . . . , as a result, plaintiffs may file with the EEOC without first filing with the [state agency]"); Green v. Los Angeles County Superintendent of Schs., 883 F.2d 1472, 1474-77 (9th Cir.1989) (where EEOC and state agency designated each other as agents under their worksharing agreement, charge was deemed filed with EEOC on date it was received by state agency, not on date it was later delivered by state agency to EEOC); Worthington v. Union Pac. R.R., 948 F.2d 477, 478-82 (8th Cir.1991) (same); see also Petrelle v. Weirton Steel Corp., 953 F.2d 148, 152 (4th Cir.1991) (conceding without deciding that plaintiff "may be correct in arguing that a work sharing agreement can be crafted to authorize [initiation of state proceedings by filing with the EEOC]," but that particular agreement at issue had not done so); Techalloy, 894 F.2d at 678-79 (worksharing agreement may provide for automatic termination of state agency proceedings). 10 After Zipes, it is incorrect to refer to the limitations period as a "jurisdictional prerequisite," as did the district court and defendant Novo in its brief on appeal. JA99; Def. Br. at 15. 11 With the adoption of the 1999 MOU, OFCCP now has the power to issue right-to-sue notices.